Immigration cases flooding U.S. courts; experts say judges pressured

Judges pressured to decide deportations quickly, advocates say

by Daniel González - Feb. 14, 2010 12:00 AMThe Arizona Republic

Stepped-up immigration enforcement is overloading U.S. immigration courts and undermining the ability of judges to rule fairly because they are under growing pressure to decide cases quickly, experts say.

The flood of cases is creating backlogs that, at least in Phoenix, will take years for judges to decide whether immigrants facing deportation can legally stay in the U.S., according to an examination by The Arizona Republic.

"There is a huge pressure to run through (cases) to maintain their dockets," said Gerald Burns, a Chandler immigration lawyer and chairman of the American Immigration Lawyers Association Arizona chapter. "They have an immense pressure to keep their dockets in check."

Although the long waits could aid some immigrants with weak cases who hope immigration reform arrives before their hearings do, for many others the delays also can hurt their cases. A witness could move, or a family member with ties to the U.S. could die.

The consequences aren't as simple as just being forced to return to their home country. Deported migrants can be separated from wives and children in the U.S. And those denied asylum could face persecution, torture or even death.

Fighting deportation

The immigration courts' judges essentially decide whether the immigrants who appear before them can stay and live legally in the United States or must be deported. The judges aren't part of the federal judiciary. Instead, they work for the Justice Department, which is part of the government's executive branch. Prosecutors work for the Department of Homeland Security, which is also part of the executive branch.

That makes them not truly independent, which also could add to pressure to move cases quickly, said Eli Kantor, an immigration lawyer in Beverly Hills.

In Phoenix, deportation and asylum cases are divided among three judges. Typically, migrants appearing before the court were arrested for a minor crime and taken to jail.

In the Maricopa County jails, officials check the immigration status of everyone during the booking process. Suspected illegal immigrants charged with serious crimes are turned over to Immigration and Customs Enforcement and held in detention centers for possible deportation after their criminal cases are resolved.

Those charged with minor crimes are often turned over to ICE, and many agree to leave voluntarily. Those who choose to fight deportation are often released on bond and given a notice to appear in immigration court.

Take Guillermo Chavez, for example. The 32-year-old Phoenix man said he was arrested by Phoenix police following an accident on Sept. 1. Chavez said he was picking up his daughter at school in north Phoenix when another driver hit his parked truck.

"The police came right away and asked for my license," Chavez said. "I didn't have one, so they arrested me. It's that simple."

Chavez, a native of Oaxaca, Mexico, said Maricopa County sheriff's officials checked his immigration status when he was booked into jail and discovered he was in the country illegally. After spending 10 days in the county's Durango Jail and 20 days in a detention center in Florence, Chavez posted a $4,000 bond for his release. Later he received a notice to appear in immigration court to face removal proceedings.

"My kids were born here, and I want a better future for them," Chavez said. "That is why I want to fight my case."

Most of the cases before the immigration courts involve parents like Chavez who have been living in the U.S. for more than 10 years and have U.S. citizen children. Those two factors make them eligible for "cancellation of removal." To win their cases, immigrants must prove to a judge that their deportation would cause "exceptional and extremely unusual hardship" to a U.S. citizen spouse, parent or child.

Immigration lawyers say the legal standard is extremely difficult to meet, especially if judges are rushing through cases. Exceptional hardship could include, for example, a U.S. relative with serious medical problems.

There is also a cap that limits the total number of cancellation of removal orders nationwide to fewer than 4,000 annually.

Nearly 11 million undocumented immigrants live in the U.S., about 460,000 in Arizona, according to the Department of Homeland Security.

Despite the challenges, a growing number of illegal immigrants facing deportation are taking their chances in court rather than leaving voluntarily, immigration lawyers say.

For some immigrants, there is an upside to the long waits.

Uberclein Velasquez Palacios is an example.

Last summer, the 18-year-old said a Phoenix police officer arrested him while he was riding his bike in south Phoenix and booked him into jail for not having a light and valid ID. Jail officials determined he was in the country illegally and notified ICE. He was issued a notice to appear in court after he decided to fight deportation.

A lawyer told Velasquez he has a weak case because he doesn't qualify for cancellation of removal. Even though he has been living here illegally since he was 3, he doesn't have any direct relatives who are U.S. citizens.

But Velasquez is hoping that, before his case is decided, Congress passes immigration reform that lets illegal immigrants get green cards. "It buys me some time," he said.

For most immigrants, however, the longer their deportation cases are pending, the greater the chance something could go wrong, said Maria Jones, a Phoenix immigration lawyer and chairwoman of the Arizona Bar Association's immigration section.

Paperwork can be lost. Neighbors and friends who might help prove time in the U.S. can move away. A U.S. citizen relative needed to qualify for cancellation of removal could die, something that has happened to at least one of Jones' clients.

Immigrants can apply for work permits and driver's licenses while their cases are pending, Jones said. But their lives are in limbo. And they also run the risk of being stopped by police again, turned over to ICE and detained.

"They are living with that fear all the time," Jones said.

A 15-month study released in June by the Chicago Appleseed Fund for Justice concluded that immigration judges can no longer function properly because of the crush of new cases.

"Sometimes delay works to the advantage of an individual, and sometimes delay has adverse effects," Executive Director Malcolm Rich said. "But from a policy perspective, it says we have a court system that is in trouble and is dysfunctional."

Rising caseloads

While the number of immigration-court judges in Phoenix has remained the same in recent years, the number of cases has soared.

Last fiscal year, the Phoenix court received 4,867 new cases, up 12 percent from the previous year and up 49 percent from 2007. The cases include bonds, motions and removal proceedings.

The volume of cases is up nationally, as well. In total, the nation's 58 immigration courts received 351,477 new cases in fiscal 2008, the most recent year available, up 5 percent from 2007.

The increase in cases stems from the federal government's crackdown on illegal immigration. The government has hired thousands of new Border Patrol and Immigration and Customs Enforcement agents in recent years to enforce immigration laws. It also has enlisted local law-enforcement agencies to help identify and arrest illegal immigrants.

The crackdowns have been especially intense in Arizona.

Hundreds of the new Border Patrol and ICE agents have been assigned to Arizona to arrest and deport illegal immigrants, contributing to the growing caseloads. Although most illegal immigrants caught at the border are quickly returned, others choose to fight to stay.

In 2006, Maricopa County Sheriff Joe Arpaio also launched a crackdown on illegal immigration that intensified the next year after he signed a dual agreement with ICE that let deputies on the street and sheriff's officials in the jails double as federal immigration agents.

In October 2009, the federal government revoked the street portion of the agreement, but deputies continue to turn over to ICE immigration violators encountered during traffic stops and crime sweeps. More than 24,000 suspected illegal immigrants were turned over to ICE from Oct. 27, 2008, to Oct. 31, 2009, as a result of the immigration enforcement at the Maricopa County jail.

What's more, the Mesa, Phoenix and Florence police departments, the Arizona Department of Public Safety and the Pinal, Pima and Yavapai county sheriff's departments all have signed agreements recently with ICE that allow designated officers and deputies to identify and arrest illegal immigrants as part of crime investigations.

The crush of new cases is delaying deportation rulings by years.

In early January, Judge Wendell Hollis, one of the three Phoenix immigration judges, didn't have room on his calendar to schedule final hearings for people seeking cancellation of removal until October 2011, 22 months later.

Judge Lamonte Freerks was backed up until December 2012, nearly three years later.

John Richardson, the senior judge, had the fullest calendar. In January, he was scheduling final hearings in August 2013.

The caseload before the judges hit a 10-year high on April 30, according to researchers at Syracuse University's Transactional Records Access Clearinghouse, which The Republic commissioned to analyze a decade's worth of court data. The 3,728 pending cases as of that date represented a 155 percent increase.

Nationally, according to the Syracuse analysis, the total number of pending cases in immigration courts in the past 10 years grew 64 percent.

Appeals for changes

In 2006, then-U.S. Attorney General Alberto Gonzales called for hiring more immigration judges to handle the growing number of cases.

That year, the Justice Department had 228 judges for 55 immigration courts nationwide. The department has since hired 44 new judges, but 31 judges retired or left, according to the Justice Department.

This year, it plans to hire 46 more: 28 new judges and 18 to fill vacancies.

Justice Department officials responding to requests for comment about the long waits for deportation hearings said in an e-mail that immigration courts do not have a "backlog" because "all cases are scheduled to be heard before an immigration judge." They did not elaborate.